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ELCStruck OutEnvironment & Land Petition E006 of 2021· [2022] KEELC 13688 (KLR)

Juma & 5 others v Kenya Rural Roads Authority & 5 others

Environment and Land Court
25 October 2022
DOD. O. Ohungo
6,536 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~26 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out landowners' constitutional petition over a road dispute, ruling they must use statutory boundary procedures instead.

What this practically means

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Executive summary

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Six petitioners, led by Mohammed Juma, owner of Westwood Premier Academy on parcel S/Wanga/Ekero/1589, petitioned the Environment and Land Court at Kakamega against KeRRA, its officers and the contractor Tai Enterprises Limited over the alignment of the Mumias-Musanda Road between points 0+323M and 0+605M. They alleged that after an initial survey of March 11, 2021, the respondents, influenced by the local area Chief, realigned the road almost entirely onto their land, creating a dangerous blind corner near the school, encroaching on their parcels and amounting to compulsory acquisition without compensation. They sought declarations of violations of Articles 40, 43(1)(f), 47 and other provisions, an injunction halting construction, and orders confining construction to the March 11, 2021 road reserve. The respondents denied any realignment or encroachment, asserting the petitioners had themselves encroached on the road corridor, and relied on a court-ordered repeat survey of September 9, 2021. The respondents also challenged jurisdiction, contending the dispute was a boundary dispute committed to the Land Registrar under Section 18 of the Land Registration Act. Ohungo J framed two issues: jurisdiction and whether the reliefs should issue. Holding that the petition was essentially a boundary and encroachment dispute with ample statutory remedies under the Land Registration Act, the Survey Act and the Fair Administrative Action Act, the court found the petition offended the doctrine of constitutional avoidance. The petition was struck out with no order as to costs.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over the petition

Holding

The court lacks jurisdiction, sitting as a constitutional court, because the dispute is essentially a boundary/encroachment matter with ample statutory remedies

Reasoning

The petitioners' case rested entirely on proving encroachment on their land by the road works. Boundary establishment and demarcation are governed by the Land Registration Act and Survey Act, and the fair administrative action claim has a remedy under Section 7 of the Fair Administrative Action Act. Raising these as constitutional claims offends the doctrine of constitutional avoidance.

02

Nature of the dispute - boundary re-establishment versus constitutional violation

Holding

The matter is a boundary dispute concerning re-establishment and demarcation of the road corridor vis-à-vis the petitioners' parcels

Reasoning

It was not disputed that the matter concerned boundary re-establishment and demarcation of the road corridor against parcels S/Wanga/Ekero/1589, 1587 and 1590. Success depended on establishing encroachment, a matter for statutory mechanisms, not a constitutional petition.

p. 10

Legal principles established

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  • Where ample statutory avenues exist for resolution of a dispute, a litigant must pursue them and a constitutional court will decline jurisdiction under the principle of constitutional avoidance
  • Mere mention of a constitutional article does not escalate an ordinary dispute into a constitutional question

Court orders

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  1. 1.The petition is struck out
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 162(2)(b), 40, 42, 69, 70, 47
  • Environment and Land Court ActSection 13
  • Land Registration ActSections 18 and 18(2)
  • Survey Act
  • Fair Administrative Action ActSection 7

Cases cited (12)

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR

    Jurisdiction is everything; without it proceedings come to an end

  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR

    A court's jurisdiction flows from the Constitution or legislation; it cannot arrogate exceeding jurisdiction

  • Phoenix of EA Assurance Company Limited v SM Thiga t/a Newspaper Service
    [2019] eKLR

    A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied

  • Daniel N Mugendi v Kenyatta University & 3 others
    [2013] eKLR

    ELC's wider jurisdiction over rights breaches related to environment and land

  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR

    Principle of constitutional avoidance - court will not determine a constitutional issue where the matter may be decided on another basis

  • Sumayya Athmani Hassan v Paul Masinde Simidi & another
    [2019] eKLR

    Where legislation gives effect to a constitutional right, a litigant cannot found a cause of action directly on the Constitution

  • Godfrey Paul Okutoyi v Habil Olaka - Executive Director (Secretary) of the Kenya Bankers Association & another
    [2018] eKLR

    Statutory rights are not fundamental rights; breaches of statute are redressed through ordinary suits

  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    [2018] eKLR

    Relied on by petitioners in submissions

  • George Kamau Macharia v Dexka Limited
    [2019] eKLR

    Relied on by respondents on boundary disputes being committed to the land registrar

  • Ibrahim Wakhanyanga & 2 others v Chief Magistrate's Court Kakamega & 2 others; Attorney General for Land Registrar Kakamega (Interested party)
    [2022] eKLR

    Relied on by respondents on jurisdiction over boundary disputes

  • Peter Thuita Kariuki v Kenya Rural Roads Authority
    [2020] eKLR

    Petitioner must identify violated articles and avail evidence of violation

  • Okiya Omtata Okoiti & 2 others v Attorney General & 3 others
    [2014] eKLR

    Relied on by second respondent urging dismissal of the petition

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Juma & 5 others v Kenya Rural Roads Authority & 5 others", Case Analysis (2022). Environment & Land Petition E006 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13688/eng@2022-10-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.